This presentation looks at one aspect of the phenomenon of the 'decentred' state - the delegation of rulemaking functions by legislatures to self-regulatory bodies. Drawing on the experience of the Communications Alliance (the Australian telecommunications sector's 'peak' self-regulatory body) formulating codes of practice, it explores if the confidential 'consensus' rulemaking process used by a number of industry sectors accords with the rule of law. It asks if the absence of certain 'core' rules that have an indirect effect on deliberation when legislators and administrators make 'law' (e.g., conflicts of interest, venue neutrality) enables industry to override consumer and public interest considerations.

This chapter focuses on the regulation of the provision of telecommunications services and the operation of telecommunications networks in the US, principally in the fixed, cable, and mobile sectors, but satellite regulation is briefly touched upon. The chapter begins by giving a brief history of US telecommunications regulation, and provides an overview of the numerous governmental bodies involved in the regulation of the US telecommunications market. It summarizes the licensing requirements under the Communications Act of 1934, and briefly explains the US approach to certain key regulatory issues in the EU: access and interconnection, spectrum management, broadband, universal service, the application of competition law to the sector, and communications privacy. It concludes with a discussion of the Federal Communications Commission (FCC)'s regulation of IP-enabled services.

Since the adoption of the 'American Recovery and Reinvestment Act of 2009' (The Recovery Act of 2009), which required the Federal Communications Commission (FCC), the primary communications regulatory body in the US, to submit a National Broadband Plan (NBP) to Congress, the US communications regulatory debate has been dominated by discussion of how to ensure all Americans have access to broadband capability which is affordable and fully utilised. However, other technological changes have also coloured the regulatory landscape in recent years: the development of IP-enabled services, technological convergence and the impending wireless revolution. To understand the regulatory issues raised by broadband, IP-enabled services, convergence, the shift to a wireless society and the response of the US to date, it is important to understand the existing legislative and regulatory framework, how it developed and the commercial context in which the framework applies.

In October 1999, potential new entrants to the United Kingdom mobile market secured a significant victory as a result of the Court of Appeal's ruling in Mercury Personal Communications Ltd (A Firm Trading as One2One)(Respondent) v. Secretary of State for the Department of Trade & Industry (Appellant). A full copy of the decision may be located at the on-line subscription service http://www.lawtel.co.uk. The Court of Appeal overturned the High Court's earlier decision upholding One2One's claim that the United Kingdom Government was acting unlawfully by requiring existing mobile network operators, as a pre-condition for participation in the upcoming auction for third-generation ("3G") spectrum licences, to allow new entrants to "roam" on to the existing networks while rolling out their networks. Under the Court of Appeal's judgment, the United Kingdom Government is now entitled to require that all existing operators (including Vodafone, BT Cellnet and Orange) provide "roaming" services to new entrants, subject to the requirements of the Roaming Condition as proposed by the Director General of Telecommunications ("DGT"). The decision is significant to the United Kingdom Government who had been forced to delay the 3G spectrum auction (now scheduled for February 21,2000) pending the Court of Appeal's decision, given that many potential new entrants struggled to create a business case for the construction of a 3G network without roaming.

The principle of consensus is increasingly advanced as a potential solution to the normative difficulties raised by globalization and the decentred state - the procedural and substantive legitimacy of industry-generated rules and the accountability of private actors in the rulemaking process. To date, however, there has been little empirical exploration of the political dynamic of industry rulemaking or evaluation of whether consensus responds adequately to it. This working paper begins that process by using the development of the Consumer Contracts Code in 2004 by a working committee formed under the auspices of the Australian Communications Industry Forum (now called the Communications Alliance), the 'peak' self-regulatory body within the Australian telecommunications sector, as a case study. While recognising that further empirical study is necessary, the working paper concludes by arguing that consensus may not respond adequately to the underlying politic.

In the landmark decision of 'A.C.L.U. v. Reno' (1997) 138 L. Ed. 2d 874, the United States Supreme Court held unconstitutional key provisions of the Communications Decency Act, which attempted to protect minors from potentially harmful and indecent materials on the Internet. The ruling marks the court's first decision (and is the first judgment of a supreme court worldwide) on the Internet and is a serious setback to American legislators in their attempts to thwart the dissemination of offensive and indecent material via the Internet.

The Australian Competition and Consumer Commission (ACCC) has proposed an important change to the access pricing principles it applies to five of the six fixed-line services declared under Pt XIC of the 'Competition and Consumer Act 2010' (Cth) (CCA), formerly known as the 'Trade Practices Act 1974' (Cth) (TPA). In its 2010 review of the 1997 telecommunications access pricing principles for fixed-line services (the proposed pricing principles), the ACCC announced it no longer has the intention of using the so-called "TSLRIC+ methodology" to determine if an access price is cost-based. Instead, it proposes the use of a building block model (BBM) methodology, which will, among other things, involve the calculation of an initial value of Telstra's regulatory asset base (RAB) using a depreciated actual cost (DAC) approach. Although any pricing methodology the ACCC adopts is, strictly speaking, non-binding, the proposed change will, as a matter of practice, inform the ACCC's thinking when exercising its new power to make up-front access determinations under the recently enacted 'Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010' (Cth) and will mark a departure from the cost-based standard which has been the worldwide industry norm for fixed-line access services since market liberalisation in the 1990s.

On 1 August 2008, the United States Federal Communications Commission (FCC) adopted a controversial order against Comcast, a cable network operator and content distributor and the second largest provider of broadband internet access in the United States, finding it had violated the FCCs policy of "network neutralit" by deliberately interfering with the ability of its customers to use BitTorrent and other peer-to-peer applications which permit the sharing of video and other large data files. Network neutrality is a concept with many variations, but which has generally come to mean that broadband access providers must ensure that their subscribers are free, of their own choosing, to access internet content and services, run related applications and connect devices to the internet. Regardless of the merits of the FCC's network neutrality policy, which are themselves debatable, the basis of the 3:2 decision of the FCC commissioners rests on untested and questionable legal ground. The order also has a number of evidentiary weaknesses and raises broader policy issues concerning internet regulation, the latter of which are of interest to Australian policymakers as the government considers the appropriate regulatory framework for the national broadband network.

As part of its wide-ranging reforms to the telecommunications regulatory regime before the introduction of the National Broadband Network (NBN), the government has proposed modifications to the anti-competitive conduct provisions of Pt XIB of the 'Trade Practices Act 1974' (Cth) (TPA). In contrast to the extensive modifications to the access provisions set out in Pt XIC, the changes proposed to Pt XIB in the 'Telecommunications Legislation Amendment' ('Competition and Consumer Safeguards') 'Bill 2009' (Cth) (the Bill) are modest, given the more market intrusive options considered in the government's April 2009 consultation document and the sustained level of criticism of the weaknesses of Pt XIB by both competitors to Telstra and the Australian Competition and Consumer Commission (ACCC), the body responsible for enforcement of Pt XIB.